R v Carroll
[2010] VSCA 20
•18 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 952 of 2008
| THE QUEEN |
| V |
| ANDREW DEAN CARROLL |
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JUDGES: | NEAVE and REDLICH JJA and HANSEN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2010 | |
DATE OF JUDGMENT: | 18 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 20 | |
JUDGMENT APPEALED FROM: | R v Carroll (Unreported, County Court of Victoria, Judge Duggan, 17 December 2008) | |
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CRIMINAL LAW – Sentence – Appellant pleaded guilty to three counts of armed robbery, three counts of assault, one count of making a threat to kill, and one count of possessing an unregistered firearm – Total effective sentence of 5 years and 4 months’ imprisonment with non-parole period of 3 years and 9 months – Judge accepted appellant had good rehabilitation prospects and on that basis expressed intention to impose shorter than normal non-parole period – Non-parole period actually imposed did not reflect judge’s intention – Failure to comply with s 6AAA(2) of Sentencing Act 1991 – Appellant re-sentenced to 5 years and 4 months’ imprisonment with non-parole period of 2 years and 10 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Ms H Spowart | Victoria Legal Aid |
NEAVE JA:
I will ask Hansen J to give the first judgment.
HANSEN AJA:
The appellant, Andrew Dean Carroll, who turned 34 last week, pleaded guilty in the County Court to three counts of armed robbery, three counts of common law assault, one count of making a threat to kill, and one count of possessing an unregistered firearm, the offences arising out of three separate armed robberies committed in February, April and May 2007 in Northcote, Coburg and Taylors Lakes respectively. Following a plea in mitigation, he was sentenced on 17 December 2008 to a total effective sentence of five years and four months’ imprisonment with a non-parole period of three years and nine months. As the appellant had been in custody since his arrest on 2 May 2007 (that being 596 days of pre-sentence detention), the effect of the non-parole period fixed was that the applicant would be required to spend at least two further years in prison as from the date of sentence, his earliest possible parole release date being February 2011.
As to the circumstances of the offences, I gratefully adopt the sentencing judge’s description of events as follows:
2The first armed robbery was on 4 February 2007. Late on that evening you entered the Albion Hotel in Northcote wearing a balaclava and carrying what the people in the hotel thought to be a silver-coloured handgun. You entered the bar and pointed the gun at the manager and another staff member. You threw a green shopping bag to them and shouted to the gaming attendant that she should, ‘Put the money in the bag.’ The staff members fled from that location. You walked around the bar and took the tray of money from the register and left the premises. The amount stolen was $3,893. The assault was committed when you threatened the manager Paul Novella with the imitation handgun.
3On 10 April 2007 you entered another hotel in Coburg, again wearing a balaclava and carrying the gun. You pointed the gun at the staff, including Ann Sciberras and yelled, ‘Give me what you’ve got.’ Again, you threw a shopping bag at a staff member. She filled the bag with cash and again you left the scene. The money taken has been estimated at approximately $2,500.
4The third armed robbery was very similar. On 2 May 2007 you ran into the gaming room of a hotel in Taylors Lakes. Again you were armed with a silver imitation pistol. Again you were wearing a balaclava. You approached the two attendants at the cashier’s desk and shouted, ‘Give us the money. Put all the money in the bag,’ whilst pointing the silver imitation pistol at both of them. One of them took out cash from the drawer and placed it in a bag. It was $5,460. A security guard then entered the gaming room. You saw him and shouted, ‘Don’t move or I’ll shoot and put a bullet through your head’ and ‘Stay the fuck away.’ That constitutes Count 4 on the second presentment, a count of making a threat to kill. Despite that, as you attempted to leave the premises you were tackled by the security guard. He removed your balaclava. You yelled, ‘I’m going to fucking kill you. You are a dead man.’
5Two patrons of the hotel came to the security guard’s assistance and you were held until the police arrived and you were arrested.
As to the circumstances of the offender, the judge referred to the following matters. First, the appellant admitted two prior court appearances, both in 1994, which resulted in convictions for burglary and theft (at Heidelberg Magistrates’ Court) and theft and arson (at Ringwood Magistrates’ Court). Secondly, the appellant’s family relationships had their share of difficulties, but the appellant regarded his parents as having been supportive throughout his life. Thirdly, the appellant’s education and employment history, as to which the judge accepted that the appellant had a good work record until a car accident in 2001 caused him significant skeletal injuries which required him to use a wheelchair for five months, and then learn how to walk again, with the consequence that he did not attempt to resume work for some two years. Fourthly, the appellant’s descent into drug abuse after the car accident, initially cannabis and then amphetamines and crystal meth (‘ice’), as to which the judge accepted that the appellant underwent a very significant personality change when using illicit drugs in general, and ice in particular. This personality change resulted in the appellant becoming estranged from his family and in particular his partner, with whom he had a son aged seven at the time of sentencing. Fifthly, as to rehabilitation, the judge referred to: (a) the appellant’s forced abstinence from drugs since his arrest leading to the ‘return of the person’ his family knew before he developed his addiction; (b) the appellant saying that he was pleased to have been apprehended when otherwise he might have killed someone or himself; (c) the appellant’s ability to put his past behaviour into perspective; (d) the appellant’s attempts to take advantage of all the courses available to him in prison; and, (e) the empathy expressed by the appellant for his victims, which the judge accepted was genuine.
The judge referred to counsel’s submission on the plea to the effect that the appellant should be regarded as ‘substantially rehabilitated’ such that he should receive ‘as a minimum term a period that would not require you to spend very much longer in custody before being eligible for parole’. The judge said:
12Whilst I accept that the history is as has been claimed, I do not accept that this should be the outcome. There is no doubt that it does make a significant difference, particularly for the length of the minimum term that you should be required to serve before becoming eligible for parole. However, I cannot accept that offending as serious as this should result in a sentence with a minimum term as short as that required by Ms Gobbo’s submission.
The judge characterised the armed robberies as ‘serious examples of a very serious offence’, and observed that ‘the long-term effect on victims who are suddenly confronted by the fear of death at the hands of a masked intruder can be substantial’.
After mentioning the appellant’s subsequent expression of empathy for his victims, the judge said:
14It may well be that your personal circumstances mean that nothing is to be achieved so far as you are concerned by being required to spend that much more time in gaol. However, there is a wider consideration. The community wants it known to potential armed robbers, whether drug-affected or otherwise, that if they are apprehended for this offence it will be treated with the utmost seriousness. To the community and, indeed, to the law being drug-affected is not a mitigating element.
15As indicated, the history that I have outlined has made a difference in that the non-parole period I propose to fix will be a smaller proportion of the total effective sentence than might otherwise be the case, but in my opinion I would be remiss if it did not require you to serve a further substantial period in gaol. Accordingly, the sentences of the court are as follows.
The judge then imposed sentences of three and a half years on each of the three counts of armed robbery, nine months on each of the three counts of common law assault, twelve months on the count of making a threat to kill, and three months on the count of possessing an unregistered firearm. Orders for cumulation resulted, as I have mentioned, in a total effective sentence of five years and fourth months’ imprisonment, with a non-parole period of three years and nine months.
The appellant now appeals pursuant to leave granted by a single judge of this Court.
The appellant’s Full Statement of Grounds of Appeal, dated 22 December 2009, lists two grounds of appeal:
1.The non-parole period fixed fails to reflect the findings made and the intention expressed by the Learned Sentencing Judge.
2.The sentence is manifestly excessive.
Before dealing with these grounds, it is to be noted that his Honour did not, as required by s 6AAA(2) of the Sentencing Act 1991, state the total effective sentence and the non-parole period that he would have imposed but for the plea of guilty. The sentencing remarks and the concluding transcript contain no such statement. However, on each presentment the judge’s associate has noted ‘6AAA discount – If not for the plea of guilty the sentence that would have otherwise been imposed on each of the armed robbery accounts is 4 years and 3 months imprisonment’. This notation was recorded on the return of prisoners. However, the notation did not comply with s 6AAA(2) as it did not state the total effective sentence and the non-parole period that otherwise would have been imposed. Compliance with the section is important not merely for reasons of transparency in sentencing, but also because engaging the process will bring to the forefront of the judicial mind the issue of the discount for the plea of guilty.[1]
[1]R v O’Blein [2009] VSCA 159.
I now deal with each ground in turn.
As to ground 1, there is no need to recite chapter and verse the principles applying to the fixing of non-parole periods. It is sufficient to note that, as Callaway JA said in Director of Public Prosecutions v Josefski,[2] ‘[t]he purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom’. Further, a sentencing judge may fix a lower than normal non-parole period to encourage an offender’s rehabilitation through an extended period of supervision on parole; see R v Bullen[3] and also R v Morgan[4] where Hargrave AJA (Maxwell P and Vincent JA agreeing) concluded that the sentencing judge was right to impose a non-parole period of 45 per cent of the total effective sentence in circumstances where the sentencing judge accepted that a longer period of supervised parole would be more likely to assist the rehabilitation process than a short parole period.[5]
[2](2005) 13 VR 85, [43].
[3][2005] VSCA 206, [15].
[4][2008] VSCA 258.
[5]Ibid [24]-[25].
In the present case the judge accepted that the appellant had good rehabilitation prospects, and on that basis proposed to fix a non-parole period that was a ‘smaller proportion of the total effective sentence than might otherwise be the case’.
It is to be noted that the Sentencing Snapshot, published by the Sentencing Advisory Council, indicates that in the period 2002–2003 to 2006–2007, the average length of total effective sentences of imprisonment for people sentenced for armed robbery (in conjunction with one or more other offences) ranged from three years and four months (with a non-parole period of one year and ten months) in 2003-2004 to four years and one month (with a non-parole period of two years and five months) in 2006-2007. Of particular relevance to ground 1, the statistics indicate that in the relevant period, average non-parole periods represented 50 to 60 per cent of average total effective sentences.
The non-parole period fixed in the present case, however, represented 70 per cent of the total effective sentence, which was high in light of the figures cited above, but more importantly in circumstances where the judge indicated that he would fix a non-parole period ‘lower than otherwise might be the case’. Further, the Crown’s written submission stated that the Crown ‘has misgivings concerning the minimum term fixed by his Honour in the light of his findings and intent to reduce the minimum sentence in light of those findings’, a statement which Mr McArdle has expressed this morning again. In my view, the non-parole period fixed failed to reflect the judge’s intention that although the appellant should receive a non-parole period that required him to serve a ‘further substantial term in gaol’, he should also have the benefit of an extended period of supervision on parole. Accordingly, ground 1 is made out.
That leaves the contention as to manifest excess. Here counsel did not attack the total effective sentence or the individual sentences. Rather, she submitted that the non-parole period was manifestly excessive, taking into account: (a) the appellant’s pleas of guilty; (b) his limited prior convictions; (c) the fact that he had not been previously been imprisoned; (d) the strong evidence of positive prospects of rehabilitation; (e) his remorse; and, (f) his ability to enter the workforce on his release.
In my view, it can be inferred that the judge took into account all of these matters. While he did not specifically refer to the fact that the appellant had never previously been imprisoned, and did not refer to the appellant’s post-release work prospects, it is clear that the judge accepted that the appellant had good rehabilitation prospects, had pleaded guilty, and sought to sentence him on that basis.
It is to be remembered that, as is often said, the question of manifest excess does not admit of much argument, and it is generally a matter of impression, having regard as best one can to all the relevant circumstances. Further, it is usually only of limited assistance to compare the instant case with others cases and sentencing statistics.
Nevertheless, I have looked at the Sentencing Snapshot published by the Sentencing Advisory Council, which showed that in the period 2002–2003 to 2006–2007:
• sentences of imprisonment for armed robbery ranged from seven days to 11 years;
• the median length of imprisonment was two years and nine months; and
• the average length of imprisonment ranged from two years and six months (in 2003-2004) to three years and two months (in 2006-2007).
In the present case, the judge imposed a sentence of three and a half years on each count of armed robbery, which was only slightly higher than average. It is to be noted, however, that the above figures refer to sentences for individual counts of armed robbery, whereas of the 1119 people sentenced for armed robbery in the relevant period, well over half were sentenced for one or more other offences at the same time. The statistics show that for people sentenced for armed robbery and at least one other offence, in the period 2002–2003 to 2006–2007:
• the median total effective sentence was three years and five months with a non-parole period of one year and nine months; and
• in 2006-2007, the average total effective sentence was four years and one month with a non-parole period of two years and five months.
The total effective sentence and non-parole period in the present case were significantly higher than the median and averages referred to above. Indeed, statistically they fell within the highest 20 per cent of cases in the period 2002–2003 to 2006–2007.
In my view, the present offences were not in the ‘worst fifth’ of armed
robberies. Nobody was physically injured, and the appellant’s gun was a fake,
although the victims did not know that at the time. However, there were three separate robberies, with three sets of victims. The maximum penalty for armed robbery is 25 years’ imprisonment, whereas here the judge imposed a sentence of only three and a half years on each count. And even allowing for the sentencing discount to which the appellant’s pleas of guilty entitled him, the total effective sentence of five years and four months was, albeit a stern sentence, one that was within the range open to the judge. Hence, it is doubtless understandable why there was no application made in relation to the total effective sentence.
In my view, however, the non-parole period was manifestly excessive, having regard to its disproportionate length in relation to the total effective sentence, in circumstances where the judge proposed a longer than normal period of supervision on parole. It may be that his failure to comply with s 6AAA(2) contributed in this regard as attention to the requirement should have brought the question as to the length of the non-parole period into sharper focus. In my view, ground 2 is made out.
In all the circumstances, I would re-sentence the appellant to five years and four months’ imprisonment with a non-parole period of two years and ten months. I note that the appellant has served 1024 days of pre-sentence detention up to but not including today.
Finally, I state that if the appellant had not pleaded guilty, I would have sentenced him to a total effective sentence of seven years’ imprisonment with a non-parole period of four years.
NEAVE JA:
I agree.
REDLICH JA:
I also agree.
NEAVE JA:
The orders of the Court will be as follows:
1. The appeal against sentence is allowed.
2. The sentences imposed on the appellant on 17 December 2008 are quashed.
3. In lieu thereof the appellant is re-sentenced as follows:
In relation to the first presentment:
· Count 1 - three and a half years’ imprisonment;
· Count 2 - nine months’ imprisonment;
· Count 3 - three and a half years’ imprisonment;
· Count 4 - nine months’ imprisonment.
In relation to the second presentment:
· Count 1 - three months’ imprisonment;
· Count 2 - three and a half years’ imprisonment;
· Count 3 - nine months’ imprisonment;
· Count 4 - 12 months’ imprisonment.
4. The Court directs that nine months of each of the sentences imposed on Counts 2 and 3 on the first presentment and four months of the sentence imposed on Count 4 on the second presentment be served cumulatively upon the sentence imposed on Count 1 on the first presentment and upon each other, making a total effective sentence of five years and four months’ imprisonment.
5. A non-parole period of two years and ten months is fixed.
6. It is declared that the period of 1024 days (not including today) be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.
7. Pursuant to s 6AAA of the Sentencing Act 1991 it is stated that if the appellant had not pleaded guilty, the Court would have imposed a total effective sentence of seven years’ imprisonment with a non-parole period of four years.
8. All other ancillary orders are confirmed.
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